BC's new policing standards are not a moratorium on "street stops"

Photo: Sozan Savehilaghi - Pivot Legal Society

BC’s newest provincial policing standards, which came into effect on January 15, 2020, are a disappointment. Despite heartfelt critiques led by legal and community-based organizations, including Pivot Legal Society, Hogan’s Alley Society, and the Carnegie Community Action Project, these standards codify a legally suspect practice, and most importantly, they fail to incorporate the foremost recommendation to prohibit the discriminatory practice of street stops altogether.

Throughout 2019, Pivot and other community and legal organizations participated in a Street Stops Sub-Committee, presumably to inform the Director of Police Services’ Street Checks Committee on the questionable legality and clear social harms of street checks.[1] Pivot worked with this committee in hopes of influencing key policing practices, including street stops, in BC. Under the Police Act, the Director can establish binding standards respecting "the promotion of unbiased policing and law enforcement services delivery".

We recommend that the Director of Police Services call for a moratorium on street checks immediately.

In our opinion, street checks are illegal and discriminatory, so we advocated for an interim moratorium and ultimate elimination of the practice throughout BC – both in communities that are policed by municipal forces as well as the RCMP.

In July 2019, Pivot provided the Director of Police Services with a Memorandum concluding that:

“Street checks, carding, and any other set of policing practices that permits stopping people for information outside of an investigation evade the Constitutional protections guaranteed to individuals during investigative detentions. The lack of protection, coupled with the incredible amount of social harms experienced by Black, Indigenous, racialized, and low-income communities due to these types of practices highlights how street checks erode trust with police. We recommend that the Director of Police Services call for a moratorium on street checks immediately.”

BC has full jurisdiction to prohibit the practice of street checks, a policing practice that disproportionately impacts Black, Indigenous, and racialized people and communities navigating systemic poverty.

Despite overwhelming evidence of the harms of street checks and their lack of substance in law, BC chose not to ban the practice. Notably, neither the Policy nor its Foreword mentions racism – although street stops are connected to anti-Black racism and settler-colonialism, regardless of the jurisdiction. Lama Mugabo, a member of Hogan’s Alley Society, shared his insights:

“Street checks are another form of racial profiling that police use to racially profile Black people whom they perceive to be potential criminals. They should be strictly limited or totally banned. Thus far, we have not seen a correlation between the [use of] street checks and safety. Unlike a driving infraction, the individual is unaware of the information collected. Most often, this information is used against [them] in the court of law.”

Consider that by the Vancouver Police Department’s own data, 15% of street checks conducted between 2008-17 involved Indigenous people. Once that data became public, Chief Bob Chamberlin, then-Vice President of the Union of BC Indian Chiefs noted“the statistics demonstrate the lived reality of institutional racism that our people face, despite the public rhetoric and celebrations around reconciliation.”

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The new standards and why they fail our communities

Photo: Sozan Savehilaghi - Pivot Legal Society

Rather than ban street checks and prevent the systemic harms the practice entails, the standards prohibit officers from requesting or demanding, collecting, or recording a person’s identifying information absent any number of broadly-stated “justifiable reasons,” which include:

an arrest;

an attempt to execute a warrant against the person;

an investigation of an offence, or reasonable grounds to believe that an offence has occurred or is about to occur, or an imminent public safety threat.

As a community-based legal organization, our view of “justifiable” differs greatly from that of the Director of Police Services, not to mention the individual police officers who exercise discretion in their daily conduct.

We also question just how “voluntary” the provision of identifying information is when it is demanded by police, especially given many people’s previous experiences with police, the impact of personal crises, and the lived realities of intersecting, marginalized identities. According to the standards, the following situations may give rise to the provision of “voluntary” information:

the officer reasonably believes the interaction, and any information requested, serves a specific public safety purpose, including:

assisting in locating a missing person,

an objectively reasonable concern for a person’s immediate safety,

assisting a person in distress to refer them to health, substance use, mental health or other supports or services, or

as part of the response to a call for service.

the officer informs the person of the reason or purpose of the interaction or the request; and

the officer takes steps to ensure the information is provided voluntarily, including but not limited to advising the person that they are not required to answer any questions.

The fact is that folks who are already over-policed and targeted by law enforcement will not assume an ability to simply walk away if police are requesting identifying information. For many individuals and in particular people of colour, walking away carries tremendous risk and the “option” of ignoring a police officer’s request is entirely illusory. In short, we cannot rely on the police’s definition of “voluntary”, particularly not when it differs so starkly from that of the directly-impacted community.

It’s never voluntary. As soon as the police want to talk to you, they stop you.

Samona Marsh[2], who has been a political activist in the Downtown Eastside community for over two decades, explains the nature of street stops in her community and the insidious impacts of chronic over-policing in people’s daily lives:

“It’s never voluntary. As soon as the police want to talk to you, they stop you. They are already going through your pockets before they even tell you why you’re detained. If police see criminal activity, objective criminal activity, they can do their job. But, for them going after people who are just trying to use, it stops people from going into sites like the OPS [overdose prevention site] and they’re going to the alleys to use, where they are at a higher chance of dying. The police know people are coming into VANDU with drugs – it’s a sanctioned injection site – and they sit outside, walk up and down the street. It would be different if they were there to truly help, instead of seeing who they can screw around.

[Regarding assisting people in distress] They don’t give you any options. The police have no idea on how to do [referrals]. The police target anyone they think is a drug dealer or homeless, and this is based on stereotypes – of how they look, colour of their skin. As soon as the police see someone who they don’t know, they stop them and claim it’s for their safety. I don’t believe that.

Even though the rules say the police can’t do certain things, they do them anyway. They search people for misdemeanours like smoking within 6 feet of a doorway and then seize all the money they have on them. They act on stereotypes: drugs are bad, anyone who does drugs must be a thug, drugs lead to violence. What actually leads to violence is policing. In the Downtown Eastside they interfere in the low-level drug trade and it causes more violence. The police say they are helping people – I don’t know who they are helping. Nobody I know.”

Samona’s experience illustrates the impact of street stops in communities that are heavily over-policed and subject to intense scrutiny. The impact of over-policing has been reflected in recent Supreme Court of Canada decisions such as R v Le (2019 SCC 34), a decision that identifies the impact of “psychological detention” on interactions with the police. Le observes that “detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave. Most citizens, after all, will not precisely know the limits of police authority and may, depending on the circumstances, perceive even a routine interaction with the police as demanding a sense of obligation to comply with every request” (para. 25).

Ultimately, the standards create a new set of confusing circumstances that allow police officers to continue collecting information through the use of street stops.

The lack of clarity, in turn, fails to meaningfully engage with the impacts of psychological detention and over-policing in communities that are constantly subject to state surveillance. In reality, the new standards afford police a legal avenue to conduct checks in virtually any circumstance, whether it’s to assist in locating a missing person, to respond to a reasonable concern for a person’s immediate safety, or to refer someone in distress to health, substance use, mental health or other supports or services. On top of this, the effectiveness of street checks has been routinely called into question by researchers and criminologists.

In reality, the new standards afford police a legal avenue to conduct checks in virtually any circumstance

"Research reports show street checks to be discriminatory in character, in terms of racism and class, with disproportionately negative impacts on racialized people. And they do nothing to address crime, as reports also show. The 2019 report commissioned by the Nova Scotia Human Rights Commission found that officers admitted many street checks are of questionable quality even on limited police terms. The 2018 report by the Honourable Michael Tulloch found little to no proof that carding has any effect on crime. So evidence suggests street checks inflict harm on communities while contributing nothing to their safety. A 2018 policy review prepared for the Edmonton Police Commission shows decisions of officers to initiate a stop based on categorical stereotypes […] another factor that plays into discretion and greater risk of being stopped are those “known to police.” This becomes a self-fulfilling process, as being subjected to a street check can make one “known to police” on that basis alone. Discretion can also be impacted by officers being assigned to a specific geographical area for a longer period of time"

Going forward: what to expect

As the standards solidify across the province and municipal and RCMP police forces across BC adopt policies to conform with it, we remain cautious about the potential of this much-heralded policy. All police forces were mandated to adopt the provincial standards by January 15, 2020, but we have had limited information about the actual roll-out of policies throughout the province.

As Pivot researchers noted in Project Inclusion, constant engagement with police is part of the daily reality for people who live in public space – police can bypass “street stop” protocols because local officers already know people by name, and folks have very little privacy due to their socioeconomic realities. With this knowledge, we cannot ensure that individuals will not be stopped by the police for no reason. To reiterate the sentiments of Latoya Farrell, Staff Lawyer at the BC Civil Liberties Association, the current policy “misses the mark.”

Going forth, we don’t know how police departments will monitor and report on street stops. We have not been provided with any curricula or training materials that will inform police departments of these new requirements. We cannot guarantee to the people we work with that police won’t let (un)conscious bias dictate law enforcement’s everyday actions, nor can we ensure that police officers will be held accountable when their actions violate the street stop policy. Ultimately, the standards fail to curb police power despite the evidence presented by Pivot, alongside other committee members, which consistently upheld the importance of a moratorium on street stops.

Despite this disappointing policy, we will continue to advocate for limits to police power, rooted in the wisdom and advocacy generated by communities impacted by over-policing and discriminatory law enforcement practices.

[1] The terms “street stop” and “street check” are used interchangeably at Pivot and we understand them to mean the same thing: when police stop people for information, including identification, outside of a police investigation.

Pivot Legal Society is located on stolen lands of the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səl̓ílwətaʔɬ (Tsleil-Waututh) peoples. We are grateful to Indigenous Peoples for their continuous relationship with their lands and are committed to learning to work in solidarity as accomplices in shifting the colonial default.